Calado v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

TAMBERLIN J

1 FEBRUARY 1999

SYDNEY

REASONS FOR JUDGMENT

Ex-tempore Judgment

1 This is an application for review under the Migration Act 1958 in relation to a decision of the Refugee Review Tribunal ("the RRT") delivered on 17 April 1998. The application for an order of review was lodged at a time when the applicant had solicitors acting for him, on 14 May 1998. I am informed that the solicitor is no longer acting as from 11 January 1999.

2 The application for review is classed in general terms and it states the grounds as being that the decision involved an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the RRT. Secondly, that the procedures required by s 420 of the Migration Act 1958 which the RRT was bound to observe were not observed. There were to be further particulars provided in relation to this matter but it appears that none have been so provided.

3 The applicant has sought in the application an order that the decision be set aside and remitted to the RRT to be reconsidered according to law, any other orders as the Court thinks fit and costs. On the matter coming on for hearing before me this morning, counsel for the Minister informed me that the Minister was prepared to consent to orders that the decision of the RRT in question be set aside and that the matter be remitted to the RRT for determination in accordance with law on the question of persecution on the ground of race.

4 Nothing which has been said by Mr Calado who has given me the benefit of his views in some detail, has identified any particular error of law, nor does the Minister concede that there has in fact been an error of law. In the circumstances and having regard to the agreement by the Minister for the matter to be referred back to the RRT in relation to the decision of 15 April 1998, it seems to me that the order which has been sought by the applicant is one on which he is substantially successful.

5 I think in the circumstances that the following are the appropriate orders to be made. Firstly, that the decision on 15 April be set aside. The second order foreshadowed is that the matter should be remitted for determination in accordance with the law on the question of persecution on the ground of race. After some consideration I think that this order is also appropriate.

6 In relation to the use of the words "in accordance with law" I should perhaps indicate that in the decision of the RRT there is reference to fear of persecution on page 16 at the foot of the page which reads as follows:

"With the possible exception of the attacks in January 1993, there is no evidence before the Tribunal which suggests that Mr Calado himself suffered serious harm because of his Bakongo ethnicity prior to his departure from Angola. Nor is there any credible evidence concerning his particular circumstances which suggest that he would face a greater chance of experiencing serious harm for a Convention reason than other Bakongo in Luanda. I am therefore not satisfied that his fear that there is a real chance that he will be persecuted on his return to Angola because of his Bakongo ethnicity, or because of political opinion which might be imputed to him because of his ethnicity."

7 It seems to me that this passage does arguably disclose an erroneous approach, though in so suggesting I make no final determination on this question. The paragraph does indicate that the decision-maker had in mind a comparative exercise in relation to a degree of experiencing serious harm for a Convention reason rather than addressing the question whether on the ground of race Mr Calado would experience serious harm. I mention this matter not by way of binding authority but in order to indicate that I fear there may have been an erroneous approach in this respect and for the guidance of the RRT in any reconsideration of the question.

8 In relation to the question of costs, I think it is appropriate that because Mr. Calado's application has been successful, any costs which he has incurred up to the date when the solicitor who was previously retained by him in the matter ceased to act, should be borne by the Minister. Otherwise, I make no order as to costs.

9 The orders of the Court then are: in relation to costs, as above; that the decision of the RRT of 15 April 1998 be set aside; and that the matter be remitted to the RRT for determination in accordance with law on the question only of persecution on the ground of race.

10 I should add this, I note that the matter was dealt with originally before this Court in December 1997. The decision of the RRT took place on 15 April 1998 and the matter now comes before me on 1 February 1999. It seems to me, that having regard to the fact that Mr Calado is in detention some effort ought be made to expedite the reconsideration of the matter by the RRT so that his detention is kept to the necessary minimum.